Narcotics case a first for Nevada

By Marshall Allen

Wednesday, Sept. 3, 2008 | 2 a.m.

Nevada bartenders are not liable for customers who drive drunk, but should the same be true for pharmacists who provide pills to suspected drug addicts?

That’s the question in a first-of-its kind appeal to the Nevada Supreme Court.

Patricia Copening was under the influence of hydrocodone on June 4, 2004, when she slammed her Dodge Durango into Gregory Sanchez Jr. and Robert Martinez, who had pulled over to the side of the road to fix a flat tire. Sanchez died and Martinez was severely injured.

Copening served nine months in the Clark County Detention Center for the crime. Now, the families of the two men have sued Copening, the two doctors who supplied her the pills, and seven pharmacies that dispensed her medications. The pharmacies are liable, the victims’ attorney argues, because they continued to fill prescriptions even after being notified of Copening’s drug abuse.

Nevada was among the first states to track every prescription filled in the state for the purpose of reducing drug abuse. The state tracks the date, medication type, quantity and name of the patient, prescribing doctor and pharmacy.

Almost a year before the accident, on June 24, 2003, the Prescription Controlled Substance Abuse Prevention Task Force warned all the doctors and pharmacies that had supplied Copening that she may be a drug abuser. The letter to the pharmacists did not tell them what to do, but urged them to “use their professional expertise to assist patients who may be abusing controlled substances.”

District Court Judge Douglas Herndon dismissed the pharmacies from the lawsuit, saying Nevada’s law is unclear as to what action pharmacies should have taken after being notified about a suspected drug abuser. He distinguished between a legal duty — which he said is not present under Nevada law — and an ethical and moral responsibility to protect the public.

Herndon said he hoped pharmacies would see the potential for abuse and say, “Hey, we’re not filling this anymore.” But that does not translate to a legal duty to cut off Copening, he said.

The best analogy for pharmacists is bartenders, Herndon said. A bartender who watches customers stumble to their cars ostensibly has the same knowledge as a pharmacist who knows a customer has received large amounts of prescription drugs.

But too many variables exist to pin the responsibility on a pharmacist, he said. Herndon wondered: Is the pharmacy supposed to ask if somebody is driving the patient home, or if she’s taking the medication the same day?

The plaintiffs are appealing Herndon’s decision to the Nevada Supreme Court. No matter the outcome, the case will proceed against Copening and the doctors — Dr. Richard Groom and Dr. Doyle Steele, whose license has been revoked by the Nevada State Medical Examiners Board.

Attorney Phillip Aurbach, representing the victims’ families, takes issue with Herndon’s bartender analogy. Pharmacists are trained professionals who counsel patients, examine dosages and have a legal duty to protect the public, Aurbach says. Pharmacists are legally empowered to refuse to fill prescriptions, he said, and should have said no to Copening.

He suggests that a better comparison is with a hotel that knows assaults occur in its parking lot but does nothing. The hotel is held responsible if another customer is assaulted, he said.

No comparable case exists nationally in which a pharmacy was notified about a patient’s suspected drug abuse before the patient caused damage, Aurbach said. But other courts have said pharmacies must protect the public. Aurbach cites a California judge who determined a pharmacist should deny medication to a known addict.

“To fail to do so is either gross incompetence, gross negligence, or moral turpitude,” the judge said, according to Aurbach’s brief.